ARB CASE NO. 09-001
ALJ CASE NO. 2008-STA-032
DATE: December 31, 2008
In the Matter of:
CHRISTOPHER AKINS,
COMPLAINANT,
v.
DART TRANSIT COMPANY,
HIGHWAY SALES, INCORPORATED,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Paul O. Taylor, Esq., Truckers Justice Center, Burnsville, Minnesota.
For the Respondent:
Sandra K. Hiller, Esq., St. Paul, Minnesota
FINAL DECISION AND ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT WITH PREJUDICE
This case arises under Section 405, the employee protection provision, of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A. § 31105 (West 2008), and implementing regulations at 29 C.F.R. Part 1978 (2008).
On November 1, 2007, the Complainant, Christopher Akins, filed a complaint with the Department of Labor's Occupational Safety and Health Administration (OSHA) alleging that the Respondents, Dart Transit Company and Highway Sales, Incorporated,
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terminated his leasing contract in violation of the STAA. OSHA denied Akins's complaint on February 26, 2008. He filed objections to the denial and timely requested a hearing pursuant to 29 C.F.R. § 1978.105.
Prior to the scheduled hearing, the parties negotiated and executed a Confidential Settlement Agreement and Release of Claims, which Akins; Donald G. Orun, Dart's Chairman of the Board; and John Seibel, Highway Sales's President, signed on September 22, 2008. The settlement agreement was filed with the Administrative Law Judge (ALJ) along with Akins's Motion to Approve Settlement and Dismiss Proceeding with Prejudice.
Under the regulations implementing the STAA, the parties may settle a case at any time after filing objections to OSHA's preliminary findings, and before those findings become final, "if the participating parties agree to a settlement and such settlement is approved by the Administrative Review Board [ARB] . . . or the ALJ." 29 C.F.R. § 1978.111(d)(2).
When the parties reached a settlement, the case was pending before the ALJ. Therefore, the ALJ appropriately reviewed the settlement agreement. On September 26, 2008, the ALJ issued a Recommended Order Approving Settlement and Dismissing Case with prejudice. The ALJ determined that the settlement agreement constituted a fair, adequate, and reasonable settlement of Akins's STAA complaint. Order at 1.
The case is now before the ARB pursuant to the STAA's automatic review provisions. 49 U.S.C.A. § 31105(b)(2)(C); see 29 C.F.R. § 1978.109(c)(1). The ARB "shall issue the final decision and order based on the record and the decision and order of the administrative law judge." 29 C.F.R. § 1978.109(c); Monroe v. Cumberland Transp. Corp., ARB No. 01-101, ALJ No. 2000-STA-050, slip op. at 2 (ARB Sept. 26, 2001).
The ARB issued a Notice of Review and Briefing Schedule permitting either party to submit briefs in support of or in opposition to the ALJ's order. Akins responded that he would not be filing a brief. Dart and Highway Sales responded that the ALJ's order should be approved and that filing a brief was unwarranted. We therefore deem the settlement unopposed under its terms.
The ARB agrees with the ALJ's determination that the parties' settlement agreement constitutes a fair, adequate, and reasonable settlement of Akins's STAA complaint and none of the parties alleges otherwise. However, review of the agreement reveals that it may encompass the settlement of matters under laws other than the STAA. Agreement at 2.B.1-13.
The ARB's authority over settlement agreements is limited to the statutes that are within our jurisdiction as defined by the applicable statute and to cases over which we have jurisdiction. Bettner v. Crete Carrier Corp., ARB No. 07-093, ALJ No. 2006-STA-033, slip op. at 2 (ARB Sept. 27, 2007). Therefore, we approve only the terms of the agreement pertaining to Akins's STAA claim, ARB No. 09-001, 2008-STA-032.
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Additionally, the agreement contains a confidentiality clause providing that the parties shall keep the terms of the settlement confidential, except as required by process of law. Agreement at 4.G. The ARB notes that the parties' submissions, including the agreements, become part of the record of the case and are subject to the Freedom of Information Act (FOIA), 5 U.S.C.A. § 552 (West 2007).
FOIA requires federal agencies to disclose requested records unless they are exempt from disclosure under the Act. Norton v. Uni Group, Inc., ARB No. 08-079, ALJ No. 2007-STA-036, slip op. at 3 (ARB May 30, 2008). Department of Labor regulations provide specific procedures for responding to FOIA requests and for appeals by requestors from denials of such requests. Id. If the confidentiality agreement were interpreted to preclude Akins from communicating with federal or state enforcement agencies concerning alleged violations of law, it would violate public policy and therefore constitute an unacceptable "gag" provision. Kingsbury v. Gordon Express, Inc., ARB No. 07-047, ALJ No. 2006-STA-024, slip op. at 2-3 (ARB Aug. 31, 2007).
Finally, the settlement provides that the agreement shall be governed and construed under the laws of the state of Minnesota. Agreement at 5.M. We construe this choice of law provision as not limiting the authority of the Secretary of Labor and any federal court, which shall be governed in all respects by the laws and regulations of the United States. Trucker v. St. Cloud Meat & Provisions, Inc., ARB No. 08-080, ALJ No. 2008-STA-023, slip op. at 3 (ARB May 30, 2008).
The parties have indicated that the agreement constitutes the entire settlement with respect to Akins's STAA claim. The ARB finds that the settlement is fair, adequate, and reasonable. Accordingly, with the reservations noted above, we AFFIRM the ALJ's recommended order approving the parties' settlement and DISMISS Akins's complaint with prejudice.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
WAYNE C. BEYER
Administrative Appeals Judge
